Law Committee in Its Gay Ruling Stepped Outside Halachic Framework

The Conservative movement’s Committee on Jewish Law and Standards last week validated three responsa, or teshuvot, on the general subject of homosexuality. In fact, the primary technical issue was the Jewish legal status of sex between members of the same gender. From the answers offered to that question followed the views of the authors as to the permissibility of commitment ceremonies — implying, of course, a need also for “uncommitment ceremonies” — and the ordination of gays and lesbians as clergy, who serve as exemplars of commitment to halachah.

Two of the papers reaffirmed the classical position of Jewish law forbidding such sexual activity and, therefore, forbade commitment ceremonies and the ordination of gays and lesbians.

The third paper permitted most sexual activity between men — forbidding only intercourse — and sexual activity between women. As a result, the authors of this paper permit commitment ceremonies and ordination.

I was the author of one of the papers that reaffirmed the classic Jewish legal position, a position I had affirmed in 1992 when this subject was last on the law committee’s agenda

Despite the popular view of what we were arguing about, I believe that the subject of gays was not what we were really divided over. It happened to be the specific subject that revealed the real fault lines in the committee, and in the Conservative movement in general.

I believe we were divided over the following irreconcilable issues:

How entitled are we to overturn longstanding and uncontested precedents of Jewish law? None of the authors of any of the papers denied what the uncontested precedents of Jewish law are, and that the preponderant majority of decisors of Jewish law from time immemorial considered all types of sexual behavior between members of the same sex to be a prohibition of biblical status, d’oraita, based on rabbinic interpretation of scriptural verses, midrash halachah.

What divided us was the question of our right to adopt a legal stance attributed to one sage that the prohibitions against sexual behavior other than male intercourse are rabbinic in status, d’rabbanan, and not biblical, which attribution is itself open to serious question and is denied by most decisors.

Even if the prohibition against sexual behavior other than male intercourse is rabbinic in authority and not biblical, what justifies our abrogating that prohibition? The authors of the permissive paper argued that the Talmudic category of “human honor,” which they translated as “human dignity,” allowed for its abrogation. I argued that the category is entirely inapplicable to the case under discussion, even if we assumed that the prohibition is rabbinic and not biblical.

In almost all of the cases in which the category is invoked, the claim is that X may violate the law out of deference to the honor of Y. In the case under discussion, X is to be entitled to violate the law out of deference to his own honor, for which claim there is no real precedent.

What’s more, such a claim is theologically weak, since no law-abiding Jew would ever entertain the possibility that his honor would supersede that of God. And in the few cases of application of the category which can possibly be understood to imply that X may violate the law out of deference to his own honor, X is always literally in a social context and in the presence of others.

For example, X may wear a hearing aid on Shabbat in the synagogue lest he be embarrassed by his inability to hear the Kaddish being recited and not answer the communal lines when the community does. In our case there is no social context, since sexual relations are, by definition, private. Therefore, the category is inapplicable.

How halachically defensible does an argument have to be before it can be considered within the halachic ballpark? We all understand and agree that decisors of Jewish law often approach the subject before them with a predisposition to give a specific answer. There’s nothing wrong with that, in my opinion.

What, then, distinguishes a good decisor from a poor one?

The good decisor is able to judge his decision with enough dispassion to see whether his predisposition has blinded him to the indefensibility of his answer, and the poor one is not.

It is my opinion that my colleagues have here been blinded to the indefensibility of their conclusion. It is based on three pillars — I have not discussed one of them here — each of which is either quite clearly false or, at a minimum, is debatable.

For their conclusion to follow, however, all three must be considered as true and valid. This leads me to conclude that their decision was arrived at entirely independent of halachic reasoning, and that the defensibility of their after-the-fact reasoning was not relevant to them. The decision simply had to be as it was.

The combination of the above lead me to believe that the permissive position validated by the law committee was really outside the halachic framework, and I resigned from the committee.

(Rabbi Joel Roth is a professor of Talmud and Jewish law at The Jewish Theological Seminary.)